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Jessup v. Progressive Funding

United States District Court, D. Columbia.

March 28, 2014

BENNIE JESSUP, Plaintiff,
v.
PROGRESSIVE FUNDING, et al., Defendants

Page 26

Bennie Jessup, Plaintiff, Pro se, Washington , DC.

For U.S. Bank, N.A, as Trustee for Banc of America Funding Corporation Mortgage Pass-Through Certificates Series 2006-G, Defendant: Mary Catherine Zinsner, Syed M. Reza, TROUTMAN SANDERS, LLP, Mclean , VA.

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MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge.

Plaintiff Bennie Jessup (" Jessup" ) purchased property located at 1855 Channing Street, NE in Washington, DC (the " Property" ) with funds from a $271,200 residential mortgage loan from Progressive Funding. (Compl. To Quiet Title, Ex. A to Notice of Removal, ECF No. 1-1 (" Compl." ), ¶ ¶ 7-8.) At some point after Jessup defaulted and foreclosure proceedings were initiated, Jessup filed a complaint for " quiet title" in the Superior Court of the District of Columbia against Progressive Funding and U.S. Bank, N.A., as trustee for Banc of America Funding Corporation Mortgage Pass-Through Certificates

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Series 2006-G (" U.S. Bank," and collectively, " Defendants" ). Proceeding pro se, Jessup alleges that Defendants do not have any lawful ownership or security interest in the Property because Progressive Funding securitized the mortgage note that Jessup executed to fund the purchase of the Property. ( Id. ¶ 2.) Jessup also asserts that, because she has not found any record of the assignment of the mortgage note and associated deed of trust to U.S. Bank, " the Deed was NEVER assigned to or owned by [U.S. Bank]." ( Id. ¶ 13 (emphasis in original).)

U.S. Bank removed Jessup's complaint to federal court (Notice of Removal, ECF No. 1), and then, filed a motion to dismiss it. ( See Def.'s Mem. in Supp. of Mot. to Dismiss, ECF No. 4 at 4-16 (" Def.'s Mem." ).)[1] U.S. Bank argues that Jessup's complaint fails to state a claim upon which relief can be granted primarily because Jessup has not pled facts sufficient to demonstrate that there is any actual conflict between the parties with respect to ownership of the Property, nor has she established superior title to the Property in a manner that would give rise to a viable quiet title claim. ( Id. at 4-6.) Because this Court agrees that Jessup's complaint fails to allege any actual controversy or plausible legal basis for recovery, and in any event, the complaint was improperly filed because Jessup failed to satisfy a contractual condition precedent, U.S. Bank's motion is GRANTED and the case will be DISMISSED as to both Defendants in its entirety and with prejudice. A separate order consistent with this opinion will follow.

I. FACTUAL BACKGROUND

The complaint contains very little factual information, but what can be gleaned about the relevant events is as follows.

Jessup purchased the Property on March 6, 2006, utilizing a $271,200 residential mortgage loan that she had obtained from Progressive Funding. (Compl. ¶ 7.) To secure the loan, Jessup signed an Adjustable Rate Note. ( Id., Ex. A, ECF No. 1-1 at 8-12 (" Note" ).) The Note identifies Progressive Funding as the Lender and attaches a Deed of Trust to secure Jessup's obligation. (Compl. ¶ 8; id., Ex. A, ECF No. 1-1 at 36-61 (" Deed" ).) In signing the Note, Jessup agreed to make monthly payments until she had repaid all amounts due under the Note. ( See Note ¶ 3.) In addition, the Note expressly informs Jessup that Progressive Funding has the right to transfer the Note. ( See id. ¶ 1 (" I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the Note Holder." ).) The Deed similarly names Progressive Funding as the lender and also designates a local attorney as trustee. ( See Deed at 1, 3.) By signing the Deed, Jessup " irrevocably grant[ed] and convey[ed]" the Property, in trust and with power of sale, to the trustee as security for her mortgage. ( Id. at 3.)[2] The express terms of the Deed

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allow Progressive Funding to sell the Note, together with the Deed, without prior notice to Jessup. ( Id. ¶ 20.) The Deed further bars Jessup from commencing any litigation related to the Deed without providing the other party with notice and a reasonable opportunity to cure. ( Id. )

Jessup's complaint alleges that Progressive Funding securitized the Note on July 31, 2006, and that the securitization " extinguished Progressive's rights as the 'note holder'" such that " Progressive is no longer entitled to payment under the subject Note." (Compl. ¶ 9; see also id. ¶ 10 (" [T]he securitization of Plaintiff's Note destroyed the Note because it was turned into a security registered with the SEC; the Note no longer exists." ).) Jessup's complaint also maintains that, while Progressive Funding may have desired to assign any interest that it had in the Note and Deed to other entities, " there is no record of the Plaintiff's Note and Deed being properly indorsed and/or assigned together to the Trust [U.S. Bank] by the Trust closing date of July 31, 2006." ( Id. ¶ 13.) " Therefore," Jessup reasons, " the Deed was NEVER assigned to or owned by the Trust." ( Id. ) The complaint makes no mention of any default regarding Jessup's obligation to make payments under the Note, nor does it state anything about foreclosure of the Property after the Note and Deed were executed.

According to facts stated in U.S. Bank's Motion to Dismiss and its attachments, Jessup's Note was indeed securitized, and the Note and Deed lawfully changed hands at least twice after they were executed.[3] Progressive Funding endorsed the Note and assigned the Deed to Wells Fargo. ( See Def.'s Mem., Ex. A, Assignment of Deed of Trust, recorded in the land records of the District of Columbia as Instrument No. 2007090097, ECF No. 4-1 at 2-3; id., Ex. B, Adjustable Rate Note, ECF No. 4-1 at 5-11 (including endorsement attachment wherein Progressive Funding endorsed the Note to Wells Fargo).) Wells Fargo subsequently endorsed and assigned the Note and Deed to U.S. Bank. ( See Def.'s Mem., Ex. C, Certificate of Assignment, recorded in the land records of the District of Columbia as Instrument No. 2009056283, ECF No. 4-1 at 13-14.) According to U.S. Bank's motion, publicly-recorded D.C. land records further reveal that Jessup defaulted on the mortgage and that U.S. Bank then initiated foreclosure proceedings in 2009 and again in 2010. ( See Def.'s Mem. at 2-3 (citing Notice of Foreclosure Sale of Real

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Property or Condominium Unit dated May 21, 2009, recorded in the land records of the District of Columbia as Instrument No. 2009053611; Notice of Foreclosure Sale of Real Property or Condominium Unit dated March 3, 2010, recorded in the land ...


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